Citation Nr: 0920231
Decision Date: 05/29/09 Archive Date: 06/08/09
DOCKET NO. 00-14 409A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
2. Entitlement to a total disability rating based on
individual unemployability (TDIU).
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active service from November 1970 to October
1972.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2000 RO rating decision which denied
service connection for PTSD, denied entitlement to a TDIU
rating due to service-connected disability, and found that
new and material evidence had not been submitted to reopen a
claim of entitlement to service connection for schizophrenia.
In August 2002, the Veteran testified at a videoconference
hearing before the undersigned Veterans Law Judge. In
January 2003, the Board determined that further development
was necessary for these issues. Pursuant to regulations in
effect at that time (but no longer in effect), the Board had
direct case development authority. By a June 2003, decision
the Board found that new and material evidence had not been
submitted to reopen a claim of entitlement to service
connection for schizophrenia.
The case was remanded in November 2004 to attempt to verify
the stressors the Veteran had described as having caused his
PTSD. That additional development has been completed, and
the case is now ready for final appellate consideration.
FINDINGS OF FACT
1. While the Veteran has been diagnosed as having service-
related PTSD, he did not engage in combat with the enemy, and
there are no service records or other credible evidence that
corroborates the occurrence of any alleged in-service
stressors.
2. The Veteran is not precluded from obtaining and retaining
substantially gainful employment due to his service-connected
disability.
CONCLUSIONS OF LAW
1. The criteria are not met for service connection for PTSD.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.304 (2008).
2. The Veteran's service connected disability does not
preclude gainful employment consistent with his education and
occupational experience. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.1, 4.15, 4.16,
4.19 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Analysis
A. PTSD
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service
connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Service connection for PTSD diagnosed after service requires
medical evidence diagnosing the condition; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to that combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R.
§ 3.304(f).
The Veteran's service records do not indicate that he was
awarded any medals indicative of combat nor do they otherwise
show that he participated in combat with the enemy.
VA treatment records reflect outpatient treatment and several
hospitalizations, beginning in 1985. Those records list
diagnoses of schizoaffective disorder, mixed personality
disorder, depressive neurosis, chronic paranoid
schizophrenia, borderline personality, substance abuse
(alcohol, marijuana, and cocaine), psychosis not otherwise
specified, borderline and antisocial traits, and mixed
personality disorder with borderline antisocial personality.
Subsequent VA outpatient clinic records dated through August
2005 reflect ongoing treatment for the Veteran's PTSD
symptoms.
A VA compensation examination was conducted in December 1999.
The examiner listed a diagnosis of chronic paranoid type
schizophrenia. He stated that he could not elicit evidence
of PTSD symptomatology; although the Veteran did report that
he tended to isolate himself, he did not report having
nightmares that involved reliving any traumatic episodes.
Another VA compensation examination was conducted in July
2001 by the same VA clinical psychologist who examined the
Veteran in December 1999. He noted the Veteran's report that
the most traumatic thing that bothered him was being sleep
deprived while on board ship. The Veteran recalled one time
when he was in the engine room for 36 hours when they were
under a sabotage threat when they were in the Gulf of Tonkin
in mid- to late 1972; he was bothered by not knowing what to
expect, the fear of what could happen. This time, the
examiner diagnosed PTSD and stated that the Veteran's PTSD
"does appear to be related to his [military] experience."
In the November 2004 remand, the Board noted that the Veteran
had reported several stressor events which he claims are
related to his PTSD. These stressor events are documented in
his testimony given at the September 1999 RO hearing, the
August 2002 videoconference hearing, and a letter received
from him in September 2003. His reported stressor events
include (1) upon reporting for duty on the USS Detroit he sat
in a chair from which a large machete-like knife protruded
between his legs; (2) a racial "riot" and racial tensions
aboard the USS Detroit; (3) encountering typhoons,
waterspouts, and hurricanes while touring the Atlantic on the
USS Detroit; (4) working on a flight line at the Naval Air
Station in Corpus Christi, Texas, and was exposed to constant
jet blasts and loud noises; (5) racial tension aboard the
USS Ticonderoga; (6) while below decks aboard the USS
Ticonderoga, he heard an aircraft crash into the ship; (7)
being denied shore leave resulting in a confrontation with
his warrant officer and 10 days in the brig; (8) being the
victim of an assault and threats of assaults; (9) working
long hours in confined spaces of the engine room of the
USS Ticonderoga with temperatures ranging from 90 to 125
degrees; (10) coming under sabotage threat and the
USS Ticonderoga went dead in the water and for approximately
32 hours, while under armed guard, he and other petty
officers were down in the engine rooms dismantling and
inspecting the main turbines and he feared he might encounter
sabotaged equipment; (11) while in a war zone (Gulf of
Tonkin) aboard the USS Ticonderoga he was on duty for four
hours and off duty for four hours; and (12) being involved in
an anti-submarine warfare task group where constant
surveillance was needed.
The November 2004 remand directed the RO to submit the
Veteran's stressor allegations to the organization now known
as the U.S. Army and Joint Services Records Research Center
(JSRRC) to obtain information that might corroborate the
alleged in-service stressors.
In October 2008, the JSRRC responded that they had reviewed
the command history of the USS Ticonderoga for 1972 and noted
that the ship departed California in May 1972 for deployment
in the Western Pacific. Following a stop in the Philippines,
the ship conducted a 25-day period of anti-submarine warfare
operations in the South China Sea. Following subsequent
stops in the Philippines and Japan, the ship returned to
California and did not redeploy to the Western Pacific,
although it did conduct further anti-submarine warfare
exercises near Hawaii and was the primary recovery ship for
the Apollo 17 mission near American Samoa in December 1972.
The JSRRC report stated that the records did not document
that the USS Ticonderoga docked, anchored, or stayed in port
in the Republic of Vietnam or six miles off the coast of
Vietnam. There was also no documentation of any aircraft
crashes to flight deck incidents during the period. The
report stated that they were unable to document the incidents
as related in the Veteran's stressor statements. The JSRRC
stated that, in order to conduct more meaningful deck log
research on his behalf, they would require the type of
aircraft, squadron assignments, location and more specific
details of the aircraft incident, as well as more details
concerning the alleged threat of sabotage and the names of
any personnel who may have been killed or injured, as well as
a more specific time period. The report indicated that the
incident of General Quarters should entail what the specific
threat against the ship was and more details of the incident
and whether any hostile action was directed against the
Ticonderoga.
Thus, none of the Veteran's claimed stressors could be
verified by the JSRRC.
Following receipt of the JSRRC report, another VA
compensation examination was conducted in March 2009, again
by the same clinical psychologist who had examined the
Veteran previously. During that examination, the Veteran
discussed only the stressors noted above on the USS Detroit,
i.e., the knife/letter opener incident and racial tensions.
The examiner noted that the Veteran did not report the same
stressors on that examination as he had previously and that
there was no independent verification of the stressor he had
reported in March 2009. The examiner stated that if, in
fact, the incident with the letter opener did occur and if,
in fact, there were threats made against the Veteran, then
that would be a sufficient stressor to cause PTSD symptoms
and it would be possible to establish a nexus between those
stressors and the PTSD symptoms he reported at the time of
that examination. On the other hand, the examiner continued,
he did not report any symptoms relating to other aspects of
his time in service, nor did he report a post-military
stressor to account for his PTSD symptoms.
The Board finds that VA has fulfilled its duty to assist the
Veteran in verifying his claimed PTSD stressors. Pursuant to
the Board's request, he has provided numerous claimed
stressors, giving as detailed information as possible, and
the JSRRC has researched each claimed stressor, to the extent
possible.
As noted above, because the Veteran did not engage in combat
with the enemy, there must be credible supporting evidence
that the claimed in-service stressor(s) occurred.
Unfortunately, his claimed stressors have not been verified.
In determining the Veteran's credibility as to the occurrence
of his claimed stressors, the Board also notes that his
service personnel records reflect a number of incidents of
non-judicial punishment throughout his period of service for
infractions that included unauthorized absences and failure
to obey lawful orders. In June 1972, consideration was given
to a possible Undesirable Discharge, although, ultimately, he
was given a General discharge by reason of unfitness; the
Veteran's DD Form 214 indicates the character of his
discharge was "Under Honorable Conditions." The Board
finds that his actions during service, and the actions taken
against him, detract from his overall credibility.
However, the fact remains that the Veteran did not engage in
combat with the enemy and that none of his claimed stressors
have been verified. The Board also recognizes that, although
numerous examiners have diagnosed PTSD, some examiners, at
least, have questioned the sufficiency of the stressors that
he reported. In the absence of a verified stressor to
account for the Veteran's PTSD symptoms, the regulatory
criteria are not met for a diagnosis of PTSD. See 38 C.F.R.
§ 3.304(f).
For all the foregoing reasons, the claim for service
connection for PTSD must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the appellant's claim, that
doctrine is not applicable in the current appeal. 38
U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
B. TDIU
A TDIU is in the nature of an increased rating. See
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
Total disability ratings for compensation may be assigned
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities: Provided, that
if there is only one such disability, this disability shall
be ratable as 60 percent or more, and that, if there are two
or more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional
disability to bring the combined rating to 70 percent or
more. 38 C.F.R. §§ 3.340, 3.341, 4.16.
A total rating may also be provided where the evidence
demonstrates such an exceptional or unusual disability
picture concerning the veteran's service-connected
disabilities with such related factors as marked interference
with employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b).
The record must reflect some factor which takes his/her case
outside the norm. 38 C.F.R. §§ 4.1, 4.15. The fact that a
claimant is unemployed or has difficulty obtaining employment
is not enough. A high schedular rating which is assigned is
recognition that the impairment makes it difficult to obtain
and keep employment. The question is whether or not the
veteran is capable of performing the physical and mental acts
required by employment, not whether he/she can find
employment. Moreover, there is no statute or regulation
which requires VA to conduct a job market or employability
survey to determine whether a claimant is unemployable as a
result of one or more service-connected disabilities. See
Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v.
Brown, 6 Vet. App. 532, 538 (1994).
However, unemployability associated with advancing age or
intercurrent disability may not be used as a basis for a
total disability rating. 38 C.F.R. § 4.19. For purposes of
entitlement to individual unemployability due solely to
service-connected disabilities, marginal employment is not to
be considered substantially gainful employment. 38 C.F.R.
§ 4.17. Factors to be considered, however, will include the
veteran's employment history, educational attainment and
vocational experience. 38 C.F.R. § 4.16.
Service connection has been established only for residuals of
a left knee injury, rated 10 percent. Therefore, the
percentage criteria of § 4.16 are not met. On his TDIU claim
form, the Veteran indicated that it was PTSD - for which
service connection has been denied - that prevented him from
securing and following any substantially gainful occupation.
He stated that he completed three years of college and had
additional training in drafting and welding. He reported
that he became too disabled to work in October 1999.
The VA clinic records reflect occasional complaints of left
knee pain. In February 2003, the Veteran reported some left
knee pain and "locking up" that had been bothering him
quite a bit. The record does not indicate that he has been
hospitalized for treatment of his service-connected left knee
disability since the 1980s. Further, the February 2003
examiner stated that the Veteran did quite a bit of manual
labor, and that he had multiple complaints of muscle spasm,
as well as low back pain. A subsequent MRI of the knee
reportedly revealed marked degenerative change in the
patellofemoral joint, as well as the tibiofemoral joint or
lateral compartment of the left knee secondary to trauma. An
examiner in September 2003 noted significant limitation of
motion of the knee due to pain with intact ligaments, and
diagnosed traumatic arthritis.
While the Veteran has complained of left knee pain and recent
examiners have noted significant limitation of motion of the
knee due to pain, the knee disability does not appear to
prevent him from doing manual labor. There is no evidence of
recent hospitalization for treatment of the knee disability,
and the Veteran has not submitted any evidence that the knee
presents any difficulty with employment. As noted above, a
10 percent rating has been assigned for the disability.
Moreover, no examiner has indicated that the service-
connected left knee disability has rendered the Veteran
unemployable.
Therefore, the Board finds that the Veteran is not precluded
from obtaining and retaining substantially gainful employment
due to his service-connected left knee disability.
Accordingly, the Board concludes that he is not individually
unemployable by reason of service-connected disability.
For all the foregoing reasons, the claim for a TDIU must be
denied. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. As the preponderance of the evidence is against
the appellant's claim, that doctrine is not applicable in the
current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
II. Duties to notify and to assist
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; and (3) that the claimant is expected
to provide.
In this case, VA satisfied its duty to notify by means of
April 2002 and December 2004 letters from the agency of
original jurisdiction (AOJ) to the appellant. The letters
informed the appellant of what evidence was required to
substantiate his claims, and of his and VA's respective
duties for obtaining evidence.
The Board acknowledges that the required notice was not
provided before the adverse decision in June 2000. Although
the appellant has the right to content-complying notice and
proper subsequent VA process, he has received that notice.
The error in not providing the required notice prior to the
adverse decision was cured by the April 2002 and December
2004 letters, and so is harmless. Moreover, the appellant
has been provided with every opportunity to submit evidence
and argument in support of his claim and to respond to VA
notices, including at two hearings. Also, in the April 2009
supplemental statement of the case, the Appeals Management
Center notified the Veteran of the information and evidence
necessary to establish the downstream elements of a rating
and the effective date for a rating, as required by
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Although the Dingess-compliant notice was not followed by a
readjudication of the claims, the Veteran is not prejudiced
because the Board has herein denied both of his claims. The
Board finds that the purpose behind the notice requirement
has been satisfied because the appellant has been afforded a
meaningful opportunity, including at two hearings and
following two Board remands, to participate effectively in
the processing of his claims and appeal. For these reasons,
it is not prejudicial to the appellant for the Board to
proceed to finally decide this appeal.
The law also requires VA to make reasonable efforts to help a
claimant obtain evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d)
(2007). This "duty to assist" ordinarily contemplates that
VA will help a claimant obtain records relevant to the claim,
whether or not the records are in Federal custody. In this
case, the Board finds that the duty to assist has been
fulfilled. During the course of this appeal, the veteran has
been afforded VA compensation examinations, and VA treatment
records covering the entire period of the appeal have been
received. No further development action is necessary.
ORDER
Service connection for PTSD is denied.
A total disability rating based on individual unemployability
due to service-connected disability is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs